Confidentiality provisions keeping the public ignorant
posted 24-Jul-2019  ·  
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Provincial Board Member Giovanni Balmadrid threw the right question at officials of the First Catanduanes Electric Cooperative, Inc. (FICELCO) in last week’s consultative meeting on the power crisis issue:

If the power supplier cannot give the required supply, what is to be done by FICELCO under the contract?

Unfortunately, only Engr. Serafin Marcaida confirmed that under its power supply agreement with the cooperative, there is a penalty clause if Napocor’s production does not reach the contracted demand.

A follow-up by the Alyansang Mabayan representative calling for the power contracts and the respective penalty clauses to be made public met a blank wall: the confidentiality clause embedded in the contracts.

A non-disclosure agreement is a standard feature nowadays in commercial negotiations with the parties intending to protect each other’s trade and operational secrets.

Under such agreements or confidentiality clauses, neither party shall, without prior consent of the other party, disclose to any person any or all parts of the confidential information.

Until now, with the copies of the Electricity Supply Agreements or its amendments seen only by the officials of the contracting parties and the Energy Regulatory Commission (ERC), there is no way the public will ever know what is exactly in the contracts or what is being hidden by the confidentiality provision.

And this is allowed by Rule 4 of the ERC Rules of Practice and Procedure, which states that a party to any proceeding before the Commission may request that certain information not be disclosed and be treated as confidential.

Under the same rules, the Commission may deny the request for confidential treatment of information on grounds such as, but not limited to the following: (a) The party requesting confidential treatment of information has no actual, valuable proprietary interest to protect with respect to the information sought to be treated as confidential; (b) The information is, at the time of the request, generally available to the public by means other than through a breach of any confidentiality obligation with respect to such information; and, (c) The information is, at the time of the request, available to or already in the possession of the Commission on a non-confidential basis from a source that, to the knowledge of the Commission, has lawfully acquired such information on a non-confidential basis.

A recent filing before the ERC by Manila Electric Co. (Meralco) and the Strategic Power Development Corp. (SPDC) on a power deal petitioned the Commission to treat as confidential two annexes of its application. These involved the Power-Demand Outlook for a specific period and the calculation of the True Cost Generation Rate (TCGR).

Nowhere in the filing of the motion for confidentiality treatment of information was anything involving a penalty clause.

Before any stakeholder files a class suit before FICELCO for non-performance of its mandate to provide efficient, reliable and affordable electricity, the contents of the power contracts it signed with its suppliers must first be made known and understood by the public.

Did the confidentiality clause cover the computation of the power rate, how the various cost components added up to the final figure or even how the cooperative intends to penalize the supplier should it fail to comply with its contractual obligations?

Surely, the public, particularly member-consumer-owners, have actual, valuable proprietary interest to such information considering that they OWN the cooperative and they PAY promptly for their power consumption.

Is there something hidden in the contracts, particularly in cost components that should not be there as alleged by oppositor Eddie Rodulfo? Is the cooperative management afraid to be taken to task by their member-consumer-owners, their bosses, for failure to impose penalties on nonperforming power suppliers?

All these questions could be answered if there is anyone out there willing to go to court to seek the disclosure of the pertinent confidential information in the power contracts.

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